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(Photo: An informal settlement close to the Lonmin mine, where 34 people were killed when police opened fire on protesting mine workers)

Mining within communities is viewed as a conduit for further development of the community. It creates an expectation of an improved standard of living and gives the community a sense of hope for better and sustainable living. This hope is often hindered by the breakdown in communication with respect to the implementation and the sustainability of the perceived progression of development. Was the Marikana massacre not the perfect example of a fatal breakdown in communication between the miners, their union representatives and Lonmin?

In looking at the socio-economic situation of the clients that approach civil society on a daily basis with cries of injustice in their communities, the land beneath their feet is the wealthiest. As a result, most of the communities affected by mining are those with very little economic freedom. But, after the granting of the mining permit, there is often even less economic freedom and often dire consequences for communities.

To ascertain whether there is mineral deposit on a piece of land, an application must be made for a prospecting right. No two people can hold a prospecting right, mining right, mining permit or retention permit for the same mineral and land at the same time. Communities on land on which there is a land claim are therefore in a state of uncertainty about who owns the mineral rights. Could mine companies be capitalising on the chaos?

Let’s assume, in this instance, that all the necessary land acquisition processes and procedures have been meticulously complied with. In order to obtain a mining right in South Africa, you have to have complied with the Mineral and Petroleum Resources Development Act (MPRDA). The Social and Labour Plan (SLP) is an important document that the Department of Mineral Resources has to assess to establish the benefit that will extend to the community in granting the permit.

Being a legally binding document, the SLP ought to be enforceable in a community; yet why is it that graduates in rural communities in which there is mining activity cannot complete their in-service training with such a mine? Or, the local councillor has neither a seat nor a say in the meetings held by the mining company? Is this a lack of representation in a democratic country?

The community of Mahlabathini in KwaZulu Natal is currently affected by coal mining activity and a “smokescreen” SLP. The traditional authorities of the area have isolated the local councillor for political reasons, resulting in her having no knowledge of the decisions taken that affect her community. Community members that worked at the mine and have since been retrenched have not been given any severance packages. The Municipality has cut off the water supply in the community; yet the mine has adequate water supply to remain fully operational. The trucks driving to and from the mine have run over livestock and children, with no compensation to the bereaved families.

With a mining permit being rewenable every 5 years, we must wonder why this would be renewed when the community has not benefitted from the mining activity as per the SLP – and in fact, has suffered considerably.

A report by the Centre for Applied Legal Studies (CALS) in March 2017 confirms that SLP’s are a requirement that is rarely enforced by mining companies. It is important to take cognisance of the fact that enforcement and accountability will not always lie with the same office. Budget may be allocated for the social-economic development of a community; however, community members give proxy to a representative who is their voice and is responsible for ensuring the upkeep of their communities’ best interests.

One cannot point a finger at the mining company alone, or the representatives of the community, for not being accountable where necessary. However, tension is bound to rise where there is no transparency. Accountability and transparency become fundamental in the socio-economic enforcement of rights in affected communities.

A more concerted effort and vigour by all the role-players is needed to question, challenge and call to book those in positions of power when decisions are made that affect communities.

The richness of the land has moved from below the feet the community to the hands of the decision-makers.

Nokukhanya Nkatha– ­2017 Bertha Justice Fellow

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/